Dienst v. Gustaveson

Appellate Terms of the Supreme Court of New York

Dienst v. Gustaveson

85 N.Y.S. 371

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 17, 1903

StatusPublished

This text of 85 N.Y.S. 371 (Dienst v. Gustaveson) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dienst v. Gustaveson, 85 N.Y.S. 371 (N.Y. Ct. App. 1903).

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Opinion

BISCHOFF, J.

Money in the hands of the comptroller, deemed to be payable to the judgment debtors, were directed by the order api pealed from to be paid to the receiver appointed in supplementary [372]*372proceedings, notwithstanding the assertion of an assignment by the judgment debtors to a third party, in good faith and for value, before the receiver was appointed, and with notice to the comptroller. The fact that the assignment was made after service of the order in supplementary proceedings upon the comptroller did not necessarily affect the rights of the assignee. Code, § 2469; Droege v. Baxter, 69 App. Div. 58, 74 N. Y. Supp. 585. And so far as there was room for reasonable dispute as to the bona fides of the assignment, which affected a question of title, asserted or to be asserted by a person not a party to the proceedings, the determination of the issue by an order in supplementary proceedings could well be resisted by the party directed to make the payment to one rather than to the other claimant. Krone v. Klotz, 3 App. Div. 587, 38 N. Y. Supp. 225. The only party affected by this order, however, was .the comptroller, who did not resist the direction to pay, and does not appeal. The appellants (the judgment debtors) have'no interest in the priority of these conflicting claims against the fund, and the assignee’s right, as against the comptroller, are not made greater nor less by the order in a proceeding to which he was not a party.

Order affirmed, with $10 costs and disbursements. All concur.

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BISCHOFF, J.

Money in the hands of the comptroller, deemed to be payable to the judgment debtors, were directed by the order api pealed from to be paid to the receiver appointed in supplementary [372]*372proceedings, notwithstanding the assertion of an assignment by the judgment debtors to a third party, in good faith and for value, before the receiver was appointed, and with notice to the comptroller. The fact that the assignment was made after service of the order in supplementary proceedings upon the comptroller did not necessarily affect the rights of the assignee. Code, § 2469; Droege v. Baxter, 69 App. Div. 58, 74 N. Y. Supp. 585. And so far as there was room for reasonable dispute as to the bona fides of the assignment, which affected a question of title, asserted or to be asserted by a person not a party to the proceedings, the determination of the issue by an order in supplementary proceedings could well be resisted by the party directed to make the payment to one rather than to the other claimant. Krone v. Klotz, 3 App. Div. 587, 38 N. Y. Supp. 225. The only party affected by this order, however, was .the comptroller, who did not resist the direction to pay, and does not appeal. The appellants (the judgment debtors) have'no interest in the priority of these conflicting claims against the fund, and the assignee’s right, as against the comptroller, are not made greater nor less by the order in a proceeding to which he was not a party.

Order affirmed, with $10 costs and disbursements. All concur.

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Bluebook (online)

85 N.Y.S. 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dienst-v-gustaveson-nyappterm-1903.

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